Former US President Donald Trump was indicted for the fourth time on Monday night, and this time he can’t pin his hopes on escaping punishment with a presidential pardon.
Georgia’s Fulton County District Attorney Fani Willis charged Trump with more than a dozen felonies tied to his efforts to overturn his 2020 election defeat in the state, ranging from conspiring to commit forgery to filing false documents to racketeering. Willis brought charges against him and 18 co-defendants under Georgia’s Racketeer Influenced and Corrupt Organisation Act, or RICO.
The fact that Trump is being charged with state crimes, and specifically under Georgia’s RICO law, means that his ace in the hole to avoid prosecution ― winning the 2024 presidential election ― isn’t likely to work in this case.
A president’s power to pardon people, including himself, doesn’t extend to state crimes.
“This case is a pardon insurance against Trump or another Republican winning and pardoning him out of the federal cases or just ordering the [Justice Department] to drop the cases,” said Norm Eisen, an attorney who served as former President Barack Obama’s ethics tzar and as special counsel for House Democrats during Trump’s 2019 impeachment trial over attempts to pressure Ukraine to investigate the Biden family.
Most of the other Republican presidential contenders with a realistic shot at the nomination, including Florida Governor Ron DeSantis and Senator Tim Scott (South Carolina), have declined to directly say whether they would pardon Trump.
And even if Georgia Governor Brian Kemp (Republican), the Trump ally turned nemesis, was inclined to pardon him, he couldn’t. Unlike most states, Georgia law does not give the governor the direct power to pardon or commute sentences, though the governor does appoint a board with that power.
Beyond that, the sprawling nature of the Georgia indictment entangles Trump in a web of co-conspirators unlike any of his prior three indictments. It spans from the Oval Office to the backrooms of low-level Georgia political and election officials, implicating well-known Trump acolytes and little-known officials in the state. Willis was able to bring such a sweeping case against Trump, essentially accusing him of being a mob boss at the helm of a vast criminal conspiracy, under the state’s expansive RICO law. These laws were initially aimed at tackling organised crime, and Georgia’s happens to be much stronger than the federal RICO law.
The evidence of Trump’s alleged conspiracy is most compelling in Georgia, said Eisen, pointing to the “three smoking guns” linked to the former president’s meddling: a recorded call of Trump urging Georgia’s secretary of state to alter the state’s presidential vote in the 2020 election, fake electoral certificates falsely declaring Trump the winner in Georgia and text messages connecting Trump’s legal team to a January 2021 voting system breach in Coffee County.
All the details of Trump’s alleged efforts to steal the 2020 election will be on full display, too, as Georgia state law requires that cameras be allowed during judicial proceedings. It’s the only one of his trials that will be accessible to the public.
“The reason that matters so much is because of this alleged conspiracy,” Eisen said. “This is the one case that’s going to be televised. If you only get one shot at it, you kind of want to use your HBO miniseries on the programming block on the big story.”
The Georgia trial will be unprecedented and certainly difficult to manage, given the large number of defendants, the nature of the alleged crimes and the fact that it centres on a former US president conspiring to steal a national election while also running for reelection.
But there’s a number of strategies that any of the 19 defendants can take to speed things up, and that includes making deals that implicate other defendants in order to save themselves.
“As the rats seek to leave the sinking ship, they may be happy to get their own life raft and leave everybody else behind,” said Caroline Fredrickson, a distinguished visiting professor at Georgetown Law and a senior fellow at the Brennan Center for Justice.
“When it turns out you have 19 people who were trying to overthrow the U.S. government and denying it the whole time, and thought they could get away with it and now are all of a sudden facing real consequences, I think you’re going to start to see some of them break ranks,” said Fredrickson, who is also the former president of the American Constitution Society.
“It is my prediction,” she added.
Fredrickson isn’t the only one who thinks defendants in the case will start coming for each other.
“Yes, absolutely,” said Donald Sherman, executive vice president and chief counsel for Citizens for Responsibility and Ethics in Washington, or CREW, a nonpartisan ethics watchdog group.
“If we have learned anything from the Trump years in government, it’s that Trump is loyal to no one, and once people realise that, they start to turn against him and others,” Sherman said. “The fact that they’re all indicted together certainly doesn’t mean that they’re all going to be tried together. I think it’s more likely that others will flip on the former president.”
It doesn’t help Trump that he’s tied to 18 co-conspirators either. If he were to try to use his status as a former president to get pardoned, somehow, that would theoretically mean everyone who was allegedly working under him to help him steal the election should be pardoned, too.
Willis teed up her indictment in a way that “makes it even harder and more problematic for pardons to come out of this process,” Sherman said. “There’s no credible way. It makes it harder to decide to pardon one actor as opposed to several others, especially the person who everyone else is working at the behest of.”
If Trump were to become president in 2024, the question of whether he could still be prosecuted is entirely new territory. It is Justice Department policy that a sitting president can’t face federal charges, but there is no legal precedent on whether a president could face state-level charges. And while presidents enjoy immunity from most lawsuits while in office, it’s legally untested whether that applies to criminal immunity from prosecution.
Any prosecution of Trump, if he wins in 2024, would likely end up with the Supreme Court’s conservative majority and Trump-appointed plurality.
“As the rats seek to leave the sinking ship, they may be happy to get their own life raft and leave everybody else behind.”
- Caroline Fredrickson, distinguished visiting professor at Georgetown Law and a senior fellow at the Brennan Center for Justice
Sherman argued that there is a provision in the Constitution, Section 3 of the 14th Amendment, that disqualifies Trump from serving in public office or even being a candidate on the grounds that he incited an insurrection. In fact, he said that CREW is planning to bring litigation “soon” to enforce this section of the Constitution against Trump.
He wouldn’t give many details. He said only that there is “ample public evidence” that the former president helped to fuel an insurrection and that CREW’s lawsuit may be brought in state court, federal court or both.
“These prosecutions are important for accountability, and I think the Georgia prosecution … is potentially a bigger threat to Donald Trump’s freedom than any of the other charges he’s facing,” Sherman said. “But they will also not prevent him from serving.”
For now, it’s up to the judge randomly assigned to this case, Fulton County Superior Court Judge Scott McAfee, to decide how to proceed. He will set the schedule for the trial and will have to navigate unsettled legal questions about actions carried out by a president.
Fredrickson said it’s important to take a step back from the Georgia indictment to think about the fact that a former president of the United States has now been indicted four times.
“Realize this is an incredible moment in history,” she said. “It’s both something we should be proud of that our legal system seems to be operating properly, but it’s something that we should all be ashamed of that we have a political system that could belch up somebody like Donald Trump and his various associates.”